Human rights and the effluxion of time; Canada's Chinese immigration act as illustrative of the need for judicial remedies for human rights violations of the distant past

Abstract

In the post-World War II era, the concept that all humans possess certain fundamental rights has achieved widespread acceptance. While no geographic limitations are acknowledged to the universality of human rights and the availability of remedies for the violation of those rights, temporal limitations seem to persist. That is, even very serious human rights violations of the distant past have often failed to attract remedies, particularly judicial remedies. The result can be lingering societal discontent. One example has been the case of Chinese immigration Canada who for many decades were required to pay a "head tax" and were for a further period banned altogether. An examination of the history of Canada's Chinese Immigration Act provides evidence of the need for courts to be able to effectively consider and, where appropriate, provide remedies for human rights violations of the distant past. Recommended changes that would facilitate this include: recognition that at least some human rights exist independently of the legislative instruments that have been created to protect them, and can be given judicial effect without recourse to those legislative instruments; recognition that the policy grounds underpinning judicial remediation of human rights violations are essentially the same as those underpinning judicial remediation of criminal offences; and development of a reasoned approach by which to distinguish between those cases for which the courts should provide remedies and those for which they should not.